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Jesus Delgado Loses 1st Degree Murder Double Jeopardy Appeal

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By Robyn Hagan Cain on October 14, 2011 4:04 PM

Convicted murderer Jesus Delgado will remain in jail after losing his double jeopardy appeal in the Eleventh Circuit Court of Appeals this week.

In 1994, Delgado was convicted of two counts of first-degree murder, one count of armed burglary, and one count of possession of a firearm by a convicted felon. Those convictions were later set aside on appeal by the Florida Supreme Court.

In 2004, Delgado was retried and convicted of two counts of first-degree murder. He claimed that the second trial violated the Fifth Amendment's prohibition on double jeopardy. The Florida Supreme Court denied his direct appeal, and the federal district court rejected his application for a writ of habeas corpus.

This week, the Eleventh Circuit Court of Appeals followed suit and concluded that Delgado was not entitled to habeas relief because he was not "twice put in jeopardy" as that phrase is defined in federal constitutional law.

Delgado claimed that Florida Supreme Court judicially acquitted him on the first-degree murder charges during his first found of appeals because the state's burglary and first-degree felony murder charges against him were both factually and legally insufficient.

While an acquittal is required when a conviction is not supported by factually sufficient evidence, and such an acquittal gives rise to double jeopardy protections, the Florida Supreme Court claimed that it did not effectually acquit Delgado of first-degree murder in Delgado I.

In Delgado I, the Florida Supreme Court discussed at length the distinction between legal and factual insufficiency, and expressly stated that "this is not a case where there was merely insufficient evidence to support the burglary charge."

The Florida Supreme Court found that Florida's theory of burglary and felony murder was legally inadequate, but it did not find that either of the State's theories of first-degree murder was factually insufficient.

Delgado filed a federal habeas petition on his double jeopardy claim, asserting that the Florida Supreme Court decision was contrary to federal law because the court refused to look beyond the statutory elements of felony murder and premeditated murder to the description of those elements presented to the jury at trial.

The Eleventh Circuit Court of Appeals found that Delgado's double jeopardy appeal lacked merit because the Fifth Amendment does not generally prohibit retrying defendants who succeed in having their convictions set aside on appeal.

The Eleventh Circuit noted that even if Florida's premeditated murder charge in Delgado's second trial was for the "same offense" as the felony-murder charge in his initial prosecution, Delgado's Fifth Amendment rights were not violated because there was no second "jeopardy," as that concept is defined under federal constitutional law.

Double jeopardy appeals have been a hot topic in the news this week since the Supreme Court granted cert in Blueford v. Arkansas, a double jeopardy appeal from the Arkansas Supreme Court. Unlike Jesus Delgado, Alex Blueford was retried on murder charges after his first murder trial ended in a hung jury.

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